While the right to a jury trial in criminal cases is a guaranteed right in the Constitution, jury trials in the civil realm have been “disappearing” over the past 50 years while case filings have gone up.
An American Bar Association study published last month, “Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges” surveyed nearly 1,500 attorneys and judges about what might cause litigants to use alternative dispute resolution. The study respondents included over 170 judges and 1,200 attorneys. Roughly 70% of judges surveyed were state judges, the rest being federal. For the attorneys, roughly 63% were handling civil cases, 33% handled criminal and 4% didn’t indicate their primary handling.
The results suggest that judges and attorneys generally still place their faith in jury trials, but money concerns, requirements in contracts and perceived pressure from others — including other attorneys and judges — are making litigants turn away from jury trials.
ABA President Patricia Lee Refo said the study confirms that, “our laws and customs need a fresh look to ensure that jury trials, a cornerstone of the American justice system, do not disappear altogether.”
The study found that judges, prosecutors and defense attorneys all ranked jury trials as being fairer than bench trials, according to the survey. Bench trials haven’t taken the place of jury trials though — the use of trial itself has been disappearing.
In the past 50 years, the usage of jury trials has dropped “dramatically,” to the point that they have become exceptional instead of commonplace, according to the report. In 2013, the percentage of federal lawsuits decided by jury trials was at 0.8%, compared with 5.5% a half-century before in 1962. At the same time, the number of federal criminal cases dropped to 3.6% in 2013 compared with 8.2% in 1962. In that same time, the number of civil case filings in federal court have increased “fourfold.”
“The explanations for that decline are far more ambiguous, in part because commentators offer so many possible explanations,” the survey states.
More than ADR
It’s commonly accepted that ADR has replaced trials. The study’s coauthor, professor Shari Diamond of the Pritzker School of Law at Northwestern University, said there’s a sense of ambivalence among trial attorneys who might enjoy going to trial but also have an obligation to get the best result for their client — sometimes meaning looking to ADR rather than trial.
But in Colorado, specifically, some statutory challenges have also played a role in determining whether a case should go to court, said Colorado Trial Lawyers Association President Debbie Taussig. Statute requires that whoever goes to trial and loses can get assessive judgment of cost from the opposing side. Further, a separate statute says that in certain cases, a plaintiff may have to pay attorney’s fees.
“I think those statutes, in Colorado, play a huge role as to why there aren’t more jury trials,” Taussig said.
The study itself points to four factors suppressing jury trials: civil damages caps, mandatory arbitration, criminal sentencing guidelines and mandatory minimum sentences.
The study found that, overall, respondents indicated that damage caps and mandatory binding arbitration “have had the greatest influence” in reducing jury trial rates. Over 50% of respondents saw each of these features causing medium to large reductions in the rate of jury trials — 61.6% for damage caps and 52.1% for mandatory arbitration.
“Those pressures have ramped up in recent years,” Diamond said.
Taussig agreed that caps are an important piece of the puzzle. She said that the expenses of civil cases have grown, and if a cap exists on how much a client can receive in monetary terms, many clients can’t find lawyers to take the case. Colorado’s medical malpractice damages caps are a frequent point of contention between litigators on opposite sides of that litigation.
“Why shouldn’t we trust that six or seven people think someone should get $700,000 … or whatever— why are we afraid of that?” Taussig said.
Respondents in the survey also viewed said mandatory arbitration is a limiter in getting to trial. Although it has become more common, mandatory arbitration typically arises because of a clause in a contract requiring a party to become “stuck” with the clause in order to accept a job or purchase an item.
The study noted that that pressure from attorneys or judges can also steer a case toward ADR rather than a trial. Respondents perceived plaintiffs as “somewhat likely” to receive pressure to settle from other people — but the groups differed in their estimates of how influential the pressure was.
The “significant” difference in perceived pressure was between plaintiff and defense attorneys, with plaintiffs seeing greater pressure than defense. However, judges and attorneys representing both sides didn’t differ from each other or from either of the other groups.
“Operating from different vantage points, the attorneys are exposed more directly to the sources of pressure that impinge on their own clients,” the study states. “Thus, it may be that the pressures on defendants are not as visible to judges and especially not to plaintiff attorneys.”
The survey also found that lawyers perceived judges and mediators to be major sources of pressure to settle cases, as well as pressure from litigants’ own attorneys. Across the different groups, respondents perceived some sources more likely to exert pressure on plaintiffs to settle, and that plaintiff attorneys were “significantly more likely” than mediators to put on pressure. However, plaintiff’s attorneys were closely followed by judges and mediators, according to the study.
However, despite the shrinking number of trials, neither judges or attorneys saw a lack of confidence or competence in lawyers as a deterrent to trials, according to the report. Actually, judges viewed litigant preference as a driving force of settlement over trial.
Cost wasn’t an issue either, according to the study. Results from respondents agreed that jury trials were worth the cost associated in both civil and criminal cases.
In civil cases, plaintiff and defense attorneys and judges agreed that mediation is “the fairest way” to case resolution, followed by jury trials and then bench trials, according to the ABA report.
THE VALUE OF TRIALS
Respondents overall found jury trials to be less predictable, less cost-effective and slower than alternative options, they also considered them fairer, according to the ABA report. In large margins, both lawyers and judges agreed that trials are worth the costs.
However, not all respondents agreed on the value of jury trials. Plaintiff’s attorneys tended to be more favorable of jury trials than those representing defendants. In criminal cases, judges and defense attorneys were more favorable to juries than prosecutors. Despite these differences in view, 79.1% of civil and 87.7% of criminal respondents agreed that jury trials were worth the costs.
Diamond said it was interesting that whether a respondent was a judge, attorney on either side of an issue or prosecution — they agreed that jury trials were worth the cost.
“That uniformity of perspective, of support for jury trials, I thought was both impressive and poignant in light of the fact that other things seem to be getting in the way,” she said.
Taussig said that clients who go all the way through a trial can find it a very difficult experience, but they feel at the end, “they get their day in court.”
The survey concludes by posing several suggestions to aid jury trials. If indeed jury trials are worth protecting, the study argues that steps must be taken to eliminate or modify features responsible for the recent drop in numbers.
Responses suggested that measures ought to be taken to reverse the “recent downward spiral in the prevalence of jury trials.” Suggestions from the study authors included elimination of or raising levels of damage caps, eliminating mandatory arbitration, reforming sentencing guidelines and abolishing mandatory minimums.
On the civil side, damage caps “undermine the willingness of attorneys to accept cases” and encourage settlement to avoid costs of trial. Mandatory arbitration cuts court access off “even more directly.” The survey notes that eliminating the features isn’t a “practicable possibility,” but legislatures could raise existing caps and move toward making arbitration “voluntary rather than binding.”
Further, Diamond noted a worry in the study that the important role of education that jury trials play could be at stake. Jury trials play a role in educating Americans about the legal system, and Diamond said loss of that education could have consequences.
Taussig agreed with the importance of jury trials to the public, noting that she had jurors before who started out their service hating it and by the end of the trial considering it an important and rewarding experience.
“That says a lot — because it really does work,” Taussig said.